Felony Drug Offense Sentencing
I am frequently asked about my approach to sentencing. People are curious why some sentences appear lenient, while others seem harsh. This article is intended to provide a basic understanding of how felony sentencing - in particular for drug offenses - works in Washington State. It is only applicable to felonies in Washington State, not any other state, and has nothing to do with federal offenses. It also does not apply to simple 'Possession of a Controlled Substance,' which, under Washington law, has been reclassified from a felony to a gross misdemeanor, with Defendants able to earn a dismissal of the charge if a treatment program is completed. Finally, this article is very basic; it is not intended to address any particular case, nor does it account for all of the nuances of Washington sentencing law. It certainly does not indicate how I would rule in a specific case.
In Washington State, the sentence range for felony drug offenses is based on the seriousness of the crime charged, and the Defendant’s criminal history. Consider a typical example, a conviction for Delivery of a Controlled Substance (“DoaCS”):
If a Defendant is convicted of DoaCS, he faces a standard sentencing range of 12-20 months in prison if his "Offender Score" has 2 or fewer 'points.' If the Defendant has more 'points,' he faces a higher range (i.e. 20-60 months for an Offender Score of 3-5, and 60-120 months for an Offender Score 6 and above).
How does a Defendant accumulate points? As follows:
- Previous felony convictions – whether in Washington State or another state – will generally count as a point, with some exceptions. A previous felony can ‘wash out’ by the passage of time with no intervening convictions. Also, if the out-of-state felony would not be a felony in Washington, it will not count as a point.
- Other current felony convictions will add a point if they do not count as ‘same criminal conduct.’ For example, if a Defendant is convicted of felony Eluding as part of the same set of facts as the DoaCS, that would add a point.
- If a Defendant was on Department of Corrections supervision at the time of the offense, that will add a point.
In addition to points, certain sentence enhancements can add potential time. In the example above, if the Defendant was armed with a firearm at the time of the offense, a 3-year sentence enhancement would be added to the standard-range sentence, which enhancement must be served consecutive to the standard sentence. If the Defendant was armed with a deadly weapon other than a firearm, he would face a one-year sentence enhancement.
If convicted, the Defendant may be eligible for a Sentencing Alternative. Washington State allows for a Drug Offender Sentencing Alternative (“DOSA”) if the Defendant meets certain criteria (e.g. the current offense is not a violent offense, no firearm or deadly weapon enhancement applies, the Defendant has no current or prior sex offense conviction, etc.). A DOSA can either be prison-based, or involve residential treatment, depending on the sentence range the Defendant is facing. Whether to grant a DOSA is up to the Judge.
Every case is different. A multi-point defendant who is dealing fentanyl for profit, while armed with a firearm and eluding law enforcement, is a different situation than a husband and wife with no felony history sharing pills between each other, and would call for a different approach by the Judge and the Prosecutor.
As an elected official, I understand that I serve my community. I want my community to be safe, just as much as anyone else. My approach to sentencing felony drug offenses would focus on the individual facts of each case, with each sentence crafted to account for community safety, accountability, reducing recidivism, and a treatment-based approach where appropriate.